Guidance on how to defeat a lack of causation motion regarding injury to a knee

With the uptick in surgeries that are taking place in no-fault practice, the question that every claims representative or defense attorney evaluating these types of cases needs to ask is: “was this injury causally related to the accident?”

As a Plaintiff’s attorney, the question you need to ask, in response to this, is how do you at least raise a triable issue of fact when faced with what should be the inevitable summary judgment motion from the defense attorney.

This is a case from the First Department, where in my opinion, they lay out how a plaintiff needs to address this type of defense.

Malloy v Matute, 2010 NY Slip Op 09383 (1st Dept. 2010)

While defendant’s experts found that plaintiff’s injuries were degenerative, plaintiff’s doctors were unanimous in concluding that the subject accident was the sole competent producing cause of plaintiff’s knee injuries, based upon (1) their individual examinations; (2) MRI results; and (3) the necessity of surgery to repair a tear in the medial meniscus, a partial tear of the anterior cruciate ligament, chondromalacia, synovitis, and fibrosis (see Pommells v Perez, 4 NY3d 566 [2005]; Colon v Bernabe, 65 AD3d 969, 970 [2009]). It also bears noting that plaintiff was 37 years old when he was hit on his right side by defendant’s taxi, he had no prior knee problems or injuries to his right leg, and his right knee surgery took place within four months of the accident.”

Lack of causal relationship motion denied based upon evidence that the injured person was "asymptomatic" prior to the motor vehicle accident

Interesting discussion on what is probably the only way to beat a threshold motion when representing a member of the “accident of the month” club.

The EBT goes like this:

(Q) Sir, were you involved in a prior accident 6 months ago when you injured every conceivable part of your body?

(A) Yes.

(Q) What pains did you have a result of the prior accident?

(A) I had pains everywhere…..(etc).

(Q) What activities couldn’t you do or do as well?

(A) (laundry list)

(Q) Immediately prior to the accident that we are here about today, how did you feel?

(A) I felt great.  I was completely healed from the medically necessary aquatherapy and selective applications of the TENS unit and heat lamp that I was either given or applied myself.

(Q) What pains did you feel after the accident?

(A) (See answer to question #2)

Come up with an affidavit from someone who will dispute the degenerative findings, and you have this case:

Feaster v Boulabat, 2010 NY Slip Op 07230 (1st Dept. 2010)

“Their examining orthopedist found limitations in range of motion in plaintiff’s cervical and lumbar spines and both knees, and opined that these were attributable to degenerative changes. However, plaintiff testified that she had been asymptomatic before her car accident, and her orthopedic surgeon opined in a report submitted by defendants that plaintiff’s injuries were causally related to the accident. Moreover, defendants’ orthopedist’s opinion that, while plaintiff may have sustained injuries to her cervical and lumbar spines and left knee in the accident, these injuries had resolved, is belied by the limitations in range of motion that he found in those areas”

Lack of causal relationship motion denied based upon evidence that the injured person was “asymptomatic” prior to the motor vehicle accident

Interesting discussion on what is probably the only way to beat a threshold motion when representing a member of the “accident of the month” club.

The EBT goes like this:

(Q) Sir, were you involved in a prior accident 6 months ago when you injured every conceivable part of your body?

(A) Yes.

(Q) What pains did you have a result of the prior accident?

(A) I had pains everywhere…..(etc).

(Q) What activities couldn’t you do or do as well?

(A) (laundry list)

(Q) Immediately prior to the accident that we are here about today, how did you feel?

(A) I felt great.  I was completely healed from the medically necessary aquatherapy and selective applications of the TENS unit and heat lamp that I was either given or applied myself.

(Q) What pains did you feel after the accident?

(A) (See answer to question #2)

Come up with an affidavit from someone who will dispute the degenerative findings, and you have this case:

Feaster v Boulabat, 2010 NY Slip Op 07230 (1st Dept. 2010)

“Their examining orthopedist found limitations in range of motion in plaintiff’s cervical and lumbar spines and both knees, and opined that these were attributable to degenerative changes. However, plaintiff testified that she had been asymptomatic before her car accident, and her orthopedic surgeon opined in a report submitted by defendants that plaintiff’s injuries were causally related to the accident. Moreover, defendants’ orthopedist’s opinion that, while plaintiff may have sustained injuries to her cervical and lumbar spines and left knee in the accident, these injuries had resolved, is belied by the limitations in range of motion that he found in those areas”

Triable issue of fact found as to the issue of whether an injury was causally related to a motor vehicle accident

Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U)(App. Term 2d Dept. 2010)

I was involved in this case.  The matter involved a knee surgery that the carrier alleged was not causally related to the motor vehicle accident.  The main piece of proof that was presented was a detailed radiological review.  It demonstrated that the knee injury was degenerative, pre-existing and in part the result of the assignor’s body habitus.  I thought it was one of the better radiological reviews I ever saw. It was obviously sufficient to demonstrate a prima facie entitlement to summary judgment.

In the original opposition, and the only one the Appellate Term considered, the plaintiff treating doctor made a conclusory allegation that the injury was related to the accident.   What was important to discern to was that in the original answering papers, the actual MRI films were never reviewed, and there was no evidence presented to rebut the radiologist’s report and affirmation.  Following my reply that pointed out the glaring holes in Plaintiff’s proof, Plaintiff filed a sur-reply, a tacit admission that more needed to be placed in their answering papers to defeat the summary judgment motion.  I will give Plaintiff’s counsel credit for doing this – it definitely showed a gumption I do not see too much of in this field of law.  Nonetheless, the sur-reply should not have been considered, which Civil Court considered anyway.  In any event, the sur-reply had gaps in proof, similar to that in the initial answering affirmation.  Civil Court found an issue of fact.

Based on the foregoing, I felt compelled to appeal – not because I am “appeal happy”- but because I earnestly felt Civil Court totally got this one wrong.

The Appellate Term at least kicked the sur-reply.  This is ironic because this court reached the opposite conclusion when presented with this exact procedural scenario in Cornell Medical v. Mercury.  Plaintiff, in its brief, even cited to Cornell Medical v. Mercury for the proposition that the sur-reply should be considered.  Yet, the situation in Cornell was more egregious than that found in this case, because my former firm received the sur-reply in Cornell the day before the final motion return date.  I think the sur-reply in this case was received a few weeks before the final return date, but I am not sure.

In any event, the Appellate Term found an issue of fact because “[t]he affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.”

This is a dangerous precedent.

Remember, on a motion for summary judgment, the proponent of the motion must demonstrate its defense prima facie, or demonstrate that an element of plaintiff’s case lacks merit.  People do not realize that on a motion for summary judgment, there is no difference between casting something as an element of a defense as opposed to casting something as an element of a party’s prima facie case.  You must always prove a negative.  Thus, the issue of causation is born by the defendant on a summary judgment motion, regardless of who bears this burden at trial.  This is an important point.

As we also know, in the non no-fault context, a party who wishes to defeat a prima facie showing of lack of causation based upon a radiological review must submit evidence demonstrating that a qualified doctor read the films and disagreed in detail with the findings of the defendant’s radiologist’s review.  The proof required to rebut a finding of lack of causation, based upon a radiological review, is the same in all contexts.

In this case, the Plaintiff failed to meet his burden based upon settled law.  I think Plaintiff was aware of this – hence the sur-reply.  As such, the Appellate Term should have reversed the order of the Civil Court.

One more thing.  What is the proper no-fault rate for the procedure in this case?  I think it is a little less than $25,000?  I am not sure.

Broke the chain of causation

Wilkins v Khoury, 2010 NY Slip Op 03435 (2d Dept. 2010)

“While the plaintiff, in opposition, raised a triable issue of fact as to whether the defendants departed from good and accepted podiatric practice by failing to diagnose her potentially gangrenous condition and failing to instruct her to go to a hospital immediately for intravenous antibiotic treatment, she failed to raise a triable issue of fact as to whether the defendants’ conduct was a proximate cause of her injuries (see Brocco v Westchester Radiological Assoc., 175 AD2d 903, 904-905). The plaintiff’s voluntary act of not going to the hospital for intravenous antibiotic treatment when she was instructed to do so by an orthopedic surgeon, who saw the plaintiff after she was treated by the defendants, was independent of and far removed from the defendants’ conduct and, thus, was a superseding act which broke the causal nexus (see Pierre v Lieber, 37 AD3d 572; Brocco v Westchester Radiological Assoc., 175 AD2d at 904-905).”

The question of whether an intervening act breaks the causal nexus between the accident and injury plays out frequently enough in no-fault practice that it seems instructive to follow this line of cases.

Causation defense rebuffed – notice the subtleties of this case

McDuffie v Rodriguez, 2010 NY Slip Op 03366 (1st Dept. 2010)

“Defendants met their prima facie burden of establishing that plaintiff did not sustain a serious injury by submitting the affirmed reports of experts who, after examining plaintiff and reviewing her medical records and MRI studies, found a lack of causation between her complaint of right knee pain and the subsequent arthroscopic surgical repair and the accident, and instead attributed plaintiff’s condition to pre-existing degenerative osteoarthritis (see Jean v Kabaya, 63 AD3d 509 [2009]). In opposition, plaintiff raised a triable issue of fact, as her treating physician noted acute injuries related to the automobile accident as well as degenerative changes. Defendants’ remaining arguments need not be addressed.”

What was not reviewed?  The MRI FILMS.

Why does this matter?  Well, what is the standard to defeat to a causation defense based upon a radiologist’s review of the films finding that the condition is degenerative?

I will tell you this much: it is more than some “[p]hysician not[ing] acute injuries related to the automobile accident….”  The answer may be found here.

The one year rule

This is an interesting case involving the one-year rule.  The Civil Court’s finding – and it would appear to be correct – is that a claims representative can make a threshold determination involving whether the existence of an injury is ascertainable within one year from the date of loss.  This is because the underlying issue does not involve the causal relationship between the loss and the service, but whether a reasonable person could ascertain the existence of a particular injury within one year after the accident.  Since this case does not involve a causal relationship issue, a lay person can presumptively make this initial determination.

Yet, as this case also demonstrates, nothing stops the plaintiff from presenting evidence to demonstrate, in rebuttal, that the injury was ascertainable within one year from the loss.

AP Orthopedics & Rehabilitation, P.C. v Allstate Ins. Co., 2010 NY Slip Op 20082 (Civ. Ct. Richmond Co. 2010)

“For example, if an insured submitted expenses for a cervical injury and then three years later submitted expenses for a knee injury, the latter would not be ascertainable within in the meaning of section 5102. On the other hand, if the subsequent treatment was for cervical injury,”that injury would be ascertainable since expenses for treatment for that injury had been submitted to the insurer within the one-year period.” Id.”


“Thus, according to Stanovich and its progeny, it would appear that as long as the insurance company can prove that it received no claims for a shoulder injury within one year of the accident, it would prevail on its defense that a claim submitted for a shoulder injury some seven years after the accident was not ascertainable within one year of the accident.”

“Thus, if within a year it is not clear with certainty or discoverable that further expenses may be incurred, the insurer is under no obligation to pay for services rendered way after a year has expired. This determination can be made by a claims examiner who reviews records submitted or denials made on claims within the first year of the accident.”

“To hold otherwise, and require an insurance company to present a medical expert to validate a claim’s examiner’s testimony that the assignor failed to file any claims relating to the shoulder within a year of the accident, would run contra to the intent of the legislation and stymie the insurers’ expeditious processing of claims. It would force insurers to dwell on every claim they received to ascertain what claims for possible new injuries might be sent by the assignor more than a year after the assignor submitted his initial claims. The insurers would be foreclosed from closing any cases for fear that they might need a medical expert, some seven years after the accident, to pore over notes from doctors that were submitted within the initial year of the accident to opine as to whether the claim for new injuries was ascertainable within one year of the accident.”

The neurologist's affirmation was insufficient to prove a lack of causal connection between the loss and the injury

Frias v James, 2010 NY Slip Op 00301 (1st Dept. 2010)

“In support of their motion, defendants submitted evidence that plaintiff was suffering from restrictions of motion in his lumbar spine, and the opinion of defendants’ examining neurologist that such restrictions were attributed to degenerative causes. That opinion, however, was conclusory as it was advanced without any elaboration and without any reference to degeneration in the MRI reports reviewed”

The carrier should have paid the $350 and obtained a radiological review.  It is as simple as that.

The neurologist’s affirmation was insufficient to prove a lack of causal connection between the loss and the injury

Frias v James, 2010 NY Slip Op 00301 (1st Dept. 2010)

“In support of their motion, defendants submitted evidence that plaintiff was suffering from restrictions of motion in his lumbar spine, and the opinion of defendants’ examining neurologist that such restrictions were attributed to degenerative causes. That opinion, however, was conclusory as it was advanced without any elaboration and without any reference to degeneration in the MRI reports reviewed”

The carrier should have paid the $350 and obtained a radiological review.  It is as simple as that.

To be Lobelled

I have always said that to understand no-fault, you need to understand bodily injury law. This is typified through instances where the result of an assigned no-fault case can fatally destroy the personal injury case for the assignor.

This issue I think rears its ugly head most often times in the so-called “causation” scenarios, where the defense to the no-fault claim is that the injuries are not causally related to the underlying motor vehicle accident. The question that arises is what happens to the corresponding personal injury claim of the assignor if the insurance carrier succeeds in proving this defense?

This is when one must understand the term: “to be lobelled”. Here is the case:

Lobel v. Allstate Ins. Co. 269 A.D.2d 502 (2d Dept. 2002).

“The defendant moved to dismiss the cause of action to recover no-fault benefits on the ground that it was barred by a prior arbitration proceeding between the plaintiff’s assignee and the defendant, which resulted in a determination that there was no casual connection between the plaintiff’s lower back condition and the subject automobile accident. The defendant demonstrated that the issue in the **489 arbitration proceeding was identical to and decisive of this cause of action. The plaintiff failed to establish the absence of a full and fair opportunity to litigate the issue in the prior matter”.

I think the bolded words speak for themselves.

Oh yes, what about the IME cut-off that is upheld? How does this impact the assignor’s personal injury case? Barnett v. Ives 265 A.D.2d 865 (4th Dept.1994).

In Barnett, the Appellate Division held that an arbitration award which found that an injured person was not longer injured as a result of the accident, whether phrased as a causation or medical necessity determination, is collateral estoppel to the injured person in a personal injury case. As observed from the facts should you pull the case up, it is potentially catosrophic in terms of proving the two most potent 5102(d) categories: (a) Significant Limitation; and (b) Permanent Consequential. Furthermore, even if you can prove Significant Limitation or 90/180, an adervse arbitration ruling would knock out future damages, which many times is the crux of the BI case. It may also call into question the degree of actual injury, which may limit damages for past pain and suffering and past economic injury.